U.S. District Judge Lowell Jensen in Oakland Thursday dismissed the claims of San Francisco, Alameda, Contra Costa, Marin, San Mateo, Santa Clara and five other California counties seeking compensation from the tobacco industry for the costs of providing care to patients with smoking-related illnesses.

Although Jensen tossed out most of the claims, he left the door open for the counties to argue the case again by the end of March. Specifically, he ruled, they must document that each smoker's injuries were caused by tobacco.

While the tobacco industry claimed victory, San Francisco City Attorney Louise Renne took heart that Jensen hadn't dismissed the lawsuit outright.

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"The judge has outlined what we have to prove if we want to prevail in federal court. This is good news," Renne said. "He did not throw out the case."

Former Supervisor Angela Alioto echoed Renne's sentiments, saying, "The judge told us to go back and rewrite the claims. Basically, the judge gave us a road map to proceed."

On one point, perhaps the one most daunting for plaintiffs, Jensen said the counties must prove that

"the health care expenses incurred for each individual smoker were a result of that smoker's tobacco use, as opposed to some other factor."

Curtis Caton, an attorney for cigarette manufacturer Philip Morris Inc., one of the defendants in the suit, said he doubts counties will go forward with the litigation.

"I think they will find it impossible to carry the burden of proving the cause of illness for each individual smoker. . . . It is going to be difficult for them to replead this case, virtually impossible."

Alioto, who spearheaded the drive to litigate when she was in office, said The City should be up to the challenge.

"It's quite easy to do," Alioto said of meeting the burden of proof. "Certain types of tobacco-related illnesses can only be caused by tobacco. Certain types of lung cancer, asthma, heart diseases are more difficult (to prove)."

Renne said San Francisco would not back off.

"Contrary to what the tobacco companies are saying - that we're dead in the water - we have every intention to proceed," Renne said.

Plaintiffs in the lawsuit, which also include Sacramento, San Bernardino, Santa Barbara, Santa Cruz and Shasta counties, claim the tobacco industry misled people about the addictiveness of nicotine. As a result, they claim, public health agencies spent millions annually to treat smokers who couldn't pay the costs of medical treatment for tobacco-related illnesses.

The counties also allege the industry fraudulently misled the public on the perils of cigarette smoking by downplaying the potential health risks.

Jensen did not toss out that argument, but said more facts are needed to back it up.

Similar suits have been filed across the nation. At least 17 states and New York City are among those taking the tobacco giants to court; none of those cases was affected by Jensen's ruling.

The California counties filed their suit in federal court last year. Another suit is pending in state court.

"Plaintiffs' lawyers, politicians and the anti-smoking industry have nothing but rhetoric to offer in support of their claims," said Charles Blixt, senior vice president and general counsel of R.J. Reynolds, based in Winston-Salem, N.C.

Despite the cries of victory from tobacco industry representatives, Alioto said the battle is far from over.

"That ruling is certainly not a victory for tobacco companies," she said. "We've just got to get on it and get the city attorney to do it right. . . . It's time to snuff out Joe Camel. It ain't over until the fat camel sings." &lt;

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